Any views expressed within media held on this service are those of the contributors, should not be taken as approved or endorsed by the University, and do not necessarily reflect the views of the University in respect of any particular issue.
Press "Enter" to skip to content

Category: Legal History

Books – Part of Our Legal Culture

Books – Part of Our Legal Culture

Published 4th March 2025

by Professor Reinhard Zimmermann, Emeritus (Director) of the Max Planck Institute for Comparative and International Private Law, Hamburg

“Mr. Booker, however, would review such a book as Lady Carbury’s ‘Criminal Queens’ without bestowing much trouble on the reading. He could do it almost without cutting the book, so that its value for purposes of after sale might not be injured”: Anthony Trollope, ‘The Way We Live Now’, Chapter 1. 

 (i) Modern academic life is characterized by an apparently unstoppable trend towards specialization. At the same time, we are faced with a proliferation of legal literature. It becomes more and more difficult to follow developments in areas not directly relevant to one’s own field of research. (ii) Contrary to the natural sciences and economics, law is a field of research where the writing of books constitutes a long-established and essential means of producing knowledge. In a number of countries (Germany and Italy among them) a scholar has to write two books in order to qualify for an academic career. In other countries (England and Scotland, for example) an aspiring academic usually has to write a PhD thesis which, in a revised version, is often subsequently published as a book. (iii) With so much writing going on, nobody can read all new law books, even those in a limited field such as contract law, or constitutional law. 

Continue readingBooks – Part of Our Legal Culture
Leave a Comment
Primary rights and liability in delict

Primary rights and liability in delict

Published 25th February 2025

By John MacLeod, Senior Lecturer in Private Law, University of Edinburgh 

Since the turn of the 21st century, Common Lawyers have discussed the basis of tortious liability extensively.[1] In particular, defences have been mounted against instrumentalism (i.e. considering law in terms of social policy). Much of the analysis turns on the idea that tort is about responding to infringements of primary rights (or to breach of primary duties). Primary rights are rights (and primary duties are duties) which do not arise from infringement of another right. They are contrasted with secondary rights, which do arise from such infringements. Property rights or rights to contractual performance are primary; rights to compensation for culpable damage or breach of contract are secondary.

If torts are thus conceptualised, the reasons which justify a primary right explain the wrongfulness of the tortious action and so support liability. Justifications for primary rights can vary and need not depend on some general logic within tort law.

What, if anything, does this literature mean for Scotland?

Continue readingPrimary rights and liability in delict
Leave a Comment
The Authority of Doctrinal Scholarship

The Authority of Doctrinal Scholarship

Published 11th October 2024

by Claudio Michelon, Professor of Philosophy of Law, University of Edinburgh

Never has so much been written about the law by so many. This phenomenon can be perceived across many jurisdictions and in practically all areas of law. This growth results from the confluence of many factors, among which the fact that there is progressively more law to be explained, analysed and critiqued, and the broadened access to legal education which, in turn, allows for greater specialization in fields and subfields of the law. The structure of legal academia, in particular the imperative to “publish or perish” surely also plays a role here. But whatever the causes, we are left with a hefty corpus of legal literature. Thus, it is perhaps worth thinking about what, in this ocean of legal writing, could possess authority, and why.

Continue readingThe Authority of Doctrinal Scholarship
Leave a Comment
Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law HistoryAn image of an old-fashioned barn with a broom and bucket.

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law History

Published 26th June 2024

by Dr. Alice Krzanich, Lecturer in Law and Legal History, University of Aberdeen

The history of employment law in Scotland is an under-researched topic. While some aspects of law and labour in Scotland’s past have been examined, others have been barely touched at all. Moreover, while many elements of employment law in modern-day Scotland are similar or identical to those in England and Wales, Scots law has its own distinct history concerning labour and employment. This is due to Scotland’s unique legal institutions and juristic traditions. There is consequently a need to investigate the history of employment law in Scotland more fully and to tease out some of the themes of its development.

This blog entry illustrates some of that distinct legal heritage by examining the employment of domestic servants in early nineteenth-century Scotland. In particular, it shows how Scots contract law regulating domestic service shared certain analytical features with the law of leases in the period c. 1800–1850. This may seem surprising, as the employment of domestic servants may (outwardly at least) seem to have little directly in common with leases of property. Yet this analysis will reveal commonalities between the two, resulting from the influence of Roman law alongside customary practices. Moreover, the law of leases was not the only area of private law that the contract of domestic service shared connections with in the nineteenth century; it was also often conceived as part of the law of familial obligations. This raises further questions about the nature of historical Scottish master-servant law, which this analysis will highlight.

Continue readingLeases and the Law of Domestic Service: Delving into Scotland’s Employment Law History
Leave a Comment
Kinghorn v Wood and the origins of trusts in ScotlandEdinburgh 1600

Kinghorn v Wood and the origins of trusts in Scotland

Published 9th October 2023

by León Carmona Fontaine, PhD Student at Edinburgh Law School*

If there was a Scottish case from the 1620s in which a Scottish court had decided that there was a sham trust, it would be surprising and significant for both historical and comparative reasons. For a start, Scots lawyers usually consider that a distinct institution known as a trust appeared in Scotland in the late 17th century, and more decisively in the 18th century.[1] Second, sham trusts are usually seen as a recent English legal development. The term ‘sham’ gained a defined legal meaning in England between the late 19th century and the second half of the 20th century (Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802),[2] and the first case in which an English court found a declaration of trust to be a sham dates from the last decade of the 20th century (Midland Bank plc v Wyatt [1997] 1 BCLC 242). Finally, Scottish courts have occasionally applied the doctrine of sham transactions, but usually by reference to modern English authorities rather than Scottish ones.

Yet, Kinghorn v Wood (1626) Mor. 5072 seems to suggest that both trusts and sham trusts existed in Scotland as early as the early 17th century. Naturally, the trust in question did not go by the name of ‘trust’, and the ‘sham’ was not yet named ‘sham’.  The word ‘trust’ started to be used in Scotland only in the course of the 17th century,[3] and the word ‘sham’ had not yet originated in the English-speaking world.[4] In substance, however, the court found an arrangement that we would nowadays call a trust to be a sham as that term has come to be understood.

Continue readingKinghorn v Wood and the origins of trusts in Scotland
Leave a Comment
css.php

Report this page

To report inappropriate content on this page, please use the form below. Upon receiving your report, we will be in touch as per the Take Down Policy of the service.

Please note that personal data collected through this form is used and stored for the purposes of processing this report and communication with you.

If you are unable to report a concern about content via this form please contact the Service Owner.

Please enter an email address you wish to be contacted on. Please describe the unacceptable content in sufficient detail to allow us to locate it, and why you consider it to be unacceptable.
By submitting this report, you accept that it is accurate and that fraudulent or nuisance complaints may result in action by the University.

  Cancel